Saturday, March 26, 2011

Hairsplitting

"Statutory Rape": The Nonsensical Hairsplitting and Arbitrariness of Age-Disparity Provisions and Distinctions and Related Matters.

I begin with a consummate example of the nonsensical and dizzying arbitrariness and hairsplitting over age-disparity distinctions, here in regard to adults who have sex with 16- and 17-year-olds, in judging who should be punished and how harshly for what one was defined under the law and is still widely referred to as "statutory rape." I quote the "masculist," "MRA," and "men's movement" syndicated columnist, Glenn Sacks:

I also think some of this statutory rape stuff is overdone. A 23-year-old with a 14-year-old goes too far, but I think it's ridiculous that we have 21-year-old men going to jail for having sex with 17-year-old girls, or 19-year-old boys going to jail for having sex with 16-year-old girls...In fact, a friend's grandparents recently celebrated their 75th wedding anniversary, and it was publicized in local papers, as it should be, since it's such an acheivement. But looking at the story and doing a little math made me realize that if the two of them had gotten together today, he would go to jail -he was 21 and she was 17 when they got married in 1922. Then it was perfectly normal -now it's a crime. Why? ("Debra Lafave, Media Sensationalism, and Rethinking Statutory Rape," bloggernews.net, 3/8/2008, posted by Glenn Sacks in 12-6-2007 in All News.)

This comment raises all sorts of questions but gives few answers, and the answers of most people will involve the arbitrariness and hair-splitting that vitiates the "statutory rape" debate and often the law.

Generally, I obviously agree that "it's ridiculous that we have 21-year-old men going to jail for having sex with 17-year-old girls, or 19-year-old boys going to jail for having sex with 16-year-old girls." I assume that Sacks also "think(s) it's ridiculous" to incarcerate 21-year women who have consensual sex with 17-year-old males, and likewise for 19-year-old females who have sex with 16-year-old males. But as a MRA obsessed with male victimization, he would never say that or bring attention to such cases.

I'm glad that Sacks opposes the incarceration of 21-year-olds who have sex with 17-year-old and 19-year-olds who have sex with 16-year-olds. But does he believe they should be charged with sexual offenses? And if so, should they be charged with felonies or misdemeanors? Or does he believe that sex between 21-year-olds and 17-year-olds should be legal. And so too with sex between 19-year-olds and 16-year-olds? But what if the "21-year-old men" and "19-year-old boys" are gang-members and/or violent criminals? Would Sacks make an exception for violent and dangerous criminals?

In arguing that "some of this statutory rape stuff is overdone," Sacks gives only two examples of "overdoneness." His extremely limited criticism of such laws would imply that he believes the age of consent should not be 16 or even 17 but rather 18. But if he opposes the incarceration of 21-year-old for having sex with 17-year-olds, what of adults of 22 and 23 and 24 who have sex with 17-year-olds. Or adults in their late 20s and 30s and so forth? Should they be jailed or imprisoned? Obviously, if it's "ridiculous" to incarcerate 21-year-old men for having sex with 17-year-old girls, how can women or men of 22 or 23 be incarcerated for having sex with 17-year-old males or females? How can it be "ridiculous" to incarcerate a 21-year-old man who has an abusive relationship with a 17-year-old girl but not a 22-year-old female who has a caring relationship with a 17-year-old male? And if he believes that sex between 21-year-olds and 17-year-olds should be legal because the adult is only 4-years older than the "minor," what of sex between 17-year-olds and adults of 22 or 23 or 24? Or adults in their late 20s and 30s and so forth? Is he advocating, implicitly, a 5-year age-disparity provision. Should adults five or more years older than their 17-year-old partners be charged with sexual offenses. And if so, felonies or misdemeanors?

If Sacks believes the age of consent should be 18, generally, with age-disparity provisions, at what magical age should adults be charged with felonies, or misdemeanors, for having sex with 17-year-olds? And if he believes that all adults who have sex with 17-year-old should be charged with sexual offenses, at what magical age should they be jailed or imprisoned? 22? 24? 27?

What if a woman teacher of 22 or 23 or 24 has a love affair with a 17-year-old student? Does Sacks believe that she should be charged with a felony, or a misdemenaor, and jailed or imprisoned? And if so, why? Because a 17-year-old male who consents to or initiates sex with a 22-year-old women is a victim of CSA who is harmed by the experience but not a 17-year-old girl who has sex with a 21-year-old man? Because a woman teacher in her early 20s who has sex with a 17-year-old male is perverse and dangerous and justly defined and vilified as a sex criminal but not an adult male of 21 who has sex with a 17-year-old girl? Or for purely moral reasons? How could Sacks or anyone else believe something so ludicrous?

And the same questions apply to sex between 19-year adults and 16-year-old "minors." For example: what of an adult of 20 or 21 who has sex with a 16-year-old? Should he/she be charged with a felony, or misdemeanor, and incarcerated? And if so, why? Virtually everyone would now agree that a "23-year-old with a 14-year-old goes too far," but exactly how should the 23-year-old be punished? I assume he also believes that a 22-year-old having sex with a 15-year-old "goes to far," but what of a 21-year-old and a 16-year-old?

My answer to Sacks and all the questions that are raised by his comments is that the age of consent should be 16 with the possible exception of gangsters and other criminals who are disposed to abuse and exploit girls of 16 and 17. My solution to the arbitrariness and hair-splitting that his comments illustrate and engender is that no nonviolent and non-criminal adult of either sex or any age should be charged with a felony or misdemeanor for having consensual sex with teenagers of 16 and 17, much less jailed or imprisoned for months or years.And with the exception of violent and dangerous criminals, adults who have consensual sex with "minors" of 14 and 15 should be charged with misdemeanor "sexual misconduct," which accurately describes the nature of such intrigues and relationships. They should not be charged with felonies such as "sexual assault," "child rape," "sexual battery," etc., which all imply the use or threat of violence or the penetration and/or molestation of prepuberbal children too young and innocent to consent in a meaninful and comprehending sense.

In all those states in which the age of consent is still 16 rather than 17 or 18, I assume it's a felony for a an adult to have sex with a 15-year-old. So it's legal for a man in his 30s or 40s to seduce a virgin on her 16th birthday but a woman in her early 20s or even late teens who's seduced by a young man one day short of his 16th birthday is guilty of a felony that carries a maximum sentence of years if not decades in prison. If adults of any age can have sex with 16-year-olds, irrespective of the nature of the adult and "minor" and other circumstances, how can adults who have sex with 15-year-olds be charged with felonies rather than misdemeanors simply because the younger partner is a few months and weeks or days under age 16? And to compound the absurdity and iniquity, possibly sentenced to years or even decades in prison and, mandatory in all cases, subjected to other draconian and Owellian penalties.

All societies must have an age of consent, and a certain amount of arbitrarines, hair-splitting, and unfairness is unavoidable, but this is ridiculous. And rankly iniquitous.

If adults who have sex with 14- and 15-year-old have prior convictions for aggravated assault, violent-forcible rape, robbery, home invasions, kidnapping, homicide, and gang-related drug trafficking, the offense should be upgraded to a felony. Generally, the only "statutory rapists" who are dangerous are those with histories of violence and malum in se criminality. And the reason they're dangerous and should be punished as felons is not because they had consensual sex with girls under statutory age but because they've committed the violent and mala in se crimes mentioned above.

The offense could also be upgraded to a felony for men who have sex with 3 or more girls purely for reasons of sexual gratification. In some cases, the crime could be upgraded to a felony for a second offense if the relations are abusive and coercive and exploitive. Moreover, adults who have sex with minors of 14 and 15 and give them drugs would be charged with felonies under the drug laws. Thus the overall offense would also be prosecuted as a felony in such cases.

As for 13-year-olds: nonviolent and first-offending adults should be charged with a felony if the "minor" is prepubertal; a misdemeanor if the "minor" is pubescent, and espeically if he's a male who's "sexually-active." At the least, women like Mary Letouneau should not be charged with felonies for having sex with 13-year-old like Vili Fualaau, who was pubertal at age 10 and "sexually-active" at 12 or even 11; who, in regard to both maturity and maturation, was far more like a 16- or 17-year-old than a typical 13-year-old; and who was the aggressor, possibly forcing himself on Mary the first time they had intercourse.

* A goal of RSOL is to "decriminalize all consensual sexual activity among teenagers," i.e., the "Romeo and Juliet" cases. Note that it says "teenagers," not teenagers under age 18, so the proposal also includes 18- and 19-year-old "adults." (Is there a distinction between the "decriminalization" as opposed to legalization of "all consensual sexual activity among teenagers?)

Generally, I agree with this goal. But what if Romeo is a gangster and/or violent criminal? What if he has prior convictions for aggravated assault, armed robbery, violent-forcible rape, gang-related drug trafficking, manslaughter, murder? What if Romeo is like the criminal who raped and tormented Cassandra Sorenson-Grohall; the predator who harassed and molested and "humped" Melissa Bittner and who has since been charged with murder; the psychopath and degenerate who raped and tormented Stacy Klein.

Moreover, if the primary objective of such laws is to protect adolescent girls from being abused and exploited and impregnated, then criminals and gangsters in their teens pose a far greater threat than men in their late 20s and 30s and 40s.

Also, the proposal to "decriminalize all consensual sexual activity among teenagers" brings up the issue of age-disparity provisions, the age of consent, distinctions between kinds of offenders, and the ineluctable but often irrational and unjust arbitrariness and hairsplitting that defines our laws.

Such decriminalization would mean that a young adult of 18 or 19 would not be charged with a crime for having consensual sex with a "minor" of 14 or even 13. And I assume RSOL makes no distinction between teenagers who are gangsters and violent criminals and those who are not. But what of a nonviolent and first-offending adult of 20 or 21 who has consensual sex with a teenager of 14 or 15 or 16? What's the RSOL position on the age of consent? Should it be 18 or 16 or lowered in accordance with European standards? If 16, should a young adult of 20 or 21 be charged with a felony or misdemeanor for having consensual sex with a 14- or 15-year-old? And how should he/she be punished?

In regard to logic and equity, if it's legal for a young man of 18 or 19 to have sex with a 15-year-old girl even if he's a gangster and/or violent criminal, then how can a 20-year-old man or women be charged with a felony for having sex with a 15-year-old and sentenced to prison or even jail? And to "sex offender treatment," years of draconian and Orwellian supervision, and 20-years to life of "sex offender registration."

Some states also have age disparity-provisions of, for example, 4-years. Under these laws, an 18-year-old male who seduces a 15-year-old virgin is not charged with a sexual offense, even if he's a gangster or violent criminal, but a 19-year-old girl is charged with a crime for having sex with a 15-year-old male, even if he's "sexually-active" and/or the aggressor in their sexual union.

* In many jurisdictions, teachers are punished far more severely than non-teachers for having sex with teenagers of 16 or 17. The fundamental rationale for this inequality is that the "disparity of power" between adults and "children" is exacerbated by the teacher's authority. In Wisconsin, for example, a violent criminal or ganster who has sex dozens of times with a girl or 16 or 17 is guilty of a misdemeanor, but a 22-year-old female teacher who engages in a single act of "intercourse" or "sexual contact" with a student of 16 or 17 is guilty of a felony that carries a maximum prison sentence of 10-years even if her "vicitm" was the aggressor. And so Melissa Bittner was charged with a felony and several counts of "sexual assault" that did not involve "intercourse" but only "sexual contact" because she was molested and "humped" by a 16-year-old predator who, when confronted by adults who learned of his "affair" with Melissa, accused her of initiating the "escapades."

* And in many states, high-school teachers are now guilty of felonies for having sex with students of 18 and 19 -but not college professors. In Texas, for example, the generic age of consent is 17 but teachers who have sex with students of 18 or 19 are guilty of a felony which carries a maximum sentence of 20-years in prison! So, under Texas law, a violent criminal or gangster can have sex with a 17-year-old girl but a woman teacher in her early 20s is guilty of a felony for having a love affair or dalliance with a student of 18 or 19. See my article, "Amy Mcelhenney and the Unique Evil of Teacher-Student Intrigues."

* Massachusetts' version of "Jessica's law" is a testament to the arbitrariness and hairplitting of age-disparity provision that goes far beyond what is merely irrational and unjust to that which is literally deranged and stupefyingly imcomprehensible.

On July 24, Gov. Patrick signed a modified "Jessica's Law," which provides for minimum mandatory sentences for certain sexual crimes against children...It still remains a crime for anyone of any age to have sex with a child under 16 under MCL c.268, s.23, but Jessica's Law has added a new MGL c.268, s.23A, which provides a 10-year minimum sentence for statutory rape in the following instances:

1. The child is under 12 and the defendant is more than 5 years older2. The child is between 12 and 16 and the defendant is more than 10 years older. (Massachusetts Law Updates: Jessica's Law and Statutory Rape, 8-13-2008, lawlib.state.ma.us)

So a 25-year-old violent male criminal or gangster who has an abusive relationship with a 15-year-old girl is not subjected to a mandatory minimum sentence of 10-years in prison under the Massachusett's version of "Jessica's law." And if blessed with an lenient judge, he could receive a few months in jail or even straight probation, just like Anthony Mason. But a 26-year-old women with no history of violence or prior criminality who has a love affair or "one-night stand" with a 15-year-old criminal who seduced her is subject to a mandatory minimum sentence of 10-years in prison simply because she's 11 rather than 10 years older than her underaged partner.

And so, too, with 25-year-olds and 14-year-old. And 24-year-olds and 13-year-olds. By what process of illogic or voodoo did the legislature settle for an age-disparity of 11-years rather than 10-years as a criterion for a mandatory-minimum sentence. What is magical about 11-years as opposed to 10-years. How is being 26 rather than 25, a few months or weeks or even days older, of paramount significance in liaisons between adults and 15-year-olds, or of any importance whatsoever?

If the law should distinquish between categories of offenders who are punished more severely for the same behavior with teenagers of identical age, the distinctions should not be between teachers and non-teachers, or adults who are 3- or 4- or 5-years older than a teenage "minor," or adults who are 11 rather than 10-years older than an underaged teenager, and so forth. The distinctions should be between the violent and non-violent, the criminal and non-criminal, the malum in se and the malum prohibita, the dangerous and non-dangerous, recidivists and first-offenders, the aberrant and normal, males and females.

To repeat in closing: nonviolent and first-offending adults who have sex with underaged teenagers should not be charged with felonies, felonies that imply violence and/or extreme deviance and, if convicted, sentenced to years in prison or even months in jail. And this in a country in which the average time-served for murder (including nonnegligent manslaughter) is roughly 6-years and the average time-served for all violent crimes (aggravated assault, violent rape, robber, and homicide) is approximately 4-years! Moreover, there is absolutely no reason or need to subject them to years of "sex offender treatment," intensive psychotherapy to cure them of mythical pathologies; years of probationary restrictions on their freedoms and instrusions into their private lives that don't apply to violent, dangerous, and recidivist criminals who've never been convicted of a sexual offense; and 20-years to life of "sex offender registration."

As for the registries": there's a question of tactics and of trying to acheive what might be unlikely but which is at least possible and conceivable. Given the zeitgeist," left to right, there's absolutely no chance of abolishing such registries at present or even in the "foreseeable future." And little chance of even limiting, dramatically and rationally, the number of people who must register as uniquely dangerous criminals. Given this reality, I think opponents of sex abuse hysteria should concentrate on removing those offenders who clearly don't belong on the registry since they're not a threat to anyone in the sense of being likely to commit a violent or other malum in se crime. My principal objection to the registry is that it includes myriads of nonviolent and first-offending men and women of all ages who had consensual sex with underaged teenagers.

At present, given this hysteria, why object to a registry that was limited to violent rapists, to males who rape women as they jog in the park or walk the streets, who break into homes and rape women, who commit rapes that involve aggravated assault, the use of guns and knives; to males who rape prepubertal girls and boys even if there's no violence or extrinsic force apart from that inherent in the act of vaginal or anal penetration, or force them to perform fellatio; to authentic pedophiles who molest and prey on biological children as opposed to someone who commits a single act of nonaggravated molestaton.

But I would ask this question: assuming we must have a registry for violent and singularly dangerous sex criminals, why not a registry for all violent and singularly dangerous criminals, a registry for brutes and crazies and predators convicted of aggravated assaults, armed robberies, car-jackings, muggings, home invasions, gang-related drug trafficking, manslaughter, and murder. For example: if a man who breaks into a home and rapes a woman is forced to publicly register as a uniquely dangerous criminal, why not a man who breaks into a home with a knife or gun and murders or seriously injures a man. If a man who rapes a women as she jogs in a park is forced to register as a uniquely dangerous criminal, why not a male who robs and attacks a male jogger and kills or seriously injures him. Or a gang of 16- and 17-year-old thugs who beat him so viciously that he dies or is permanently impaired? Violent criminals are gravely dangerous, whether they commit acts of sexual violence or nonsexual violence.

The paramount irony of the current sex offender registry is that street thugs who've committed dozens and scores of violent crimes but who've never been convicted of a sexual offense are infiinitely more likely to rape women and underaged teenage girls than most men and all women on the sex offender registries. For obvious anatomical reasons, women can't rape anyone in the pure and literal sense of that word. At present, women teachers who were raped and molested by teenage criminals have to register and be publicly exposed and shamed for 20-years to life as uniquely dangerous criminals, but not cutthroats and gangsters conivcted of aggravated assaults, robberies, and even homicide. Absolute insanity! Stupefying irrationality!

Even more ironically, many if not most of these brutes have committed rapes, either of women and girls and/or of males in prisons and jails, for which they were never convicted or even prosecuted. And they're also infinitely more likely to kill or assault people, including children, than all the nonviolent people on the sex-offender registries.